DILAN PERERA v. RAJITHA SENARATNE

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DILAN PERERA
v.
RAJITHA SENARATNE
COURT OF APPEAL.
YAPA, J.
DE. SILVA, J.
CA 1164/98.
16™, 28th, 29th, 30™ SEPTEMBER, 1999.06™, 11™, 25™, 26™ OCTOBER, 1999.04™ NOVEMBER, 1999.
10™ DECEMBER, 1999.
Constitution, Articles 66(d), 89, 90, 91(l)(e), 101(l)(c), 171. – Memberof Parliament – Contracts with Government Institutions and PublicCorporations – Is he disqualified – Right to hold office as a Member ofParliament – Is the appointment void – Donoughmore Constitution – SoulburyConstitution – Article I3(3)(c) -1972 Constitution Articles 12(1), S.70(l)(d)S. 73(f) – Ceylon (Parliamentary Elections) Order in Council 1946, S. 77(e) -Act, No. 44 of 1980 – Act, No. 1 of 1981 – Delay – Continuing offence.
The Petitioner a Member of Parliament, complained that the1st Respondent who is also a Member of Parliament, nominated from theNational List, has entered into various contracts with Governmentinstitutions – as a partner and a Director to supply Dental Equipmentand therefore is disqualified under Article 91(l)(e) of the Constitution,and sought a declaration that the l3' Respondent has no right to holdoffice as a Member of Parliament (M.P.) and that his appointment is void.
It is the position of the Petitioner that the 1st Respondent whilst holdingthe office of a M.P. is carrying on a partnership business under the nameand style of M/s Senaratne Dental Suppliers engaged in the business ofimporting and distributing dental equipment and material.
It was contended by the lsl Respondent that in any event as there is nolaw prohibiting a M.P. from entering into contracts with any Governmentinstitution, there was no possibility of taking action against the 1stRespondent in respect of the alleged contracts.
Held :
Parliament has not prescribed the law necessary under Article91( l)(e) that will provide for the disqualification of a person to be elected
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as a M.P. Therefore Ceylon (Parliamentary Elections) Order in Council1946 will continue to operate subject to – Act, 44 of 1980 and Act. No. 1of 1981. It is kept alive by Article 101(2) of the 1978 Constitution.
Once the Ceylon (Parliamentary Elections) Order in Council 1946continues to operate then one has to apply Section 13(3)(c) ofthe 'Soulbury Constitution’ for the purpose of considering anydisqualification by reason of contract.
The reason being that section 77 of the Ceylon (ParliamentaryElections) Order in Council 1946, refers to the grounds for the avoidanceof Elections, more specifically section 77(e) gives the disqualifications forelection as one of the grounds.
In these circumstances section 13(3) of the Soulbury Constitutionshould be considered for any disqualification by reason of any contract.
Per Yapa, J.
“Decision in the case of Dahanayake vs De Silva11' is part of the lawin force."
The position regarding contracts under the Soulbury Constitution islaid down in section 13(3)(c) of the said Constitution.
Per Yapa, J.
“From an examination of the provisions of section 13(3)(c) it is seen thata member could be held disqualified at the point of election (by an electionPetition) and thereafter (by quo warranto) from sitting and voting if he hasentered into a prohibited contract after his election";
The Petitioner who is a M.P. has locus standi to file the application.
In respect of the question of delay, it is to be observed that there canbe no delay for the reason that the mischief complained of is a continuousone. The 1st Respondent’s continuance in office affords fresh cause ofaction each day till he is removed.
The 1st Respondent cannot function as a M.P. and his office as M.P.would became vacant in terms of Article 66(d) of the 1978 Constitution.
APPLICATION for Writs in the nature of Quo Warranto/Mandamus
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Dilan Perera u. Rafitha Senaratne (Yapa. J.)
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Cases referred to :
Dahanayake vs De Silva [ 1978-79-801 1 Sri.L.R. 41
Dahanayake vs Pieris 45 NLR 385
Chandler Sons vs D.P.P. (1964) AC 763
Walker Sons & Co. U.K Ltd., vs Gunatilake [1978-79-80] 1Sri.L.R. 231
Soniasunctran vs Kotelawala 40 NLR 205
Coorey vs De Zoysa 41 NLR 121
Kulasingham vs Thambiyah 49 NLR 505
Thambiyah vs Kulasingham 50 NLR 25
Gunasekera vs Wyesinghe 65 NLR 303
Martin Perera vs Madadombe 73 NLR 25
Nesamony vs Varghese (52) Tr. C66
Sana Sampat vs Jalgaon Borough Municipality 1 LR (1958) Bom113, 566
Wijedasa Rajapakse with S. Wimalasekera for Petitioner.
K.N. Choksy P.C with Daya Pelpola for 1st and 2nd Respondents.
Saleem Marsoof P.C. Additional Solicitor General for 3-5 Respondents.
Cur. adv. vult.
March 31, 2000.
HECTOR YAPA, J.The petitioner is a Member of Parliament. He contested asa candidate at the General Elections held on 16th August 1994for the Badulla District Electorate from the People’s Allianceand was elected as a Member of Parliament. The 1st respondentto this application is also a Member of Parliament. He wasnominated as a Member of Parliament from the national list bythe United National Party with effect from 18th August 1994 asreferred to in the gazette notification marked P1. The petitionerin this application has alleged that the 1st respondent who isa Member of Parliament has entered into various contractswith Government Institutions to supply dental equipment andmaterial. Further he (1st respondent) has tendered for severalcontracts and some of them have been awarded to him. He hasentered into these contracts as a partner of Senaratne Dental
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Supplies and as a director of a company called SenaratneDental Supplies (Private) Ltd. Therefore petitioner has statedin his petition that the 1st respondent is guilty of having suchinterest in such contracts entered into with the StateInstitutions or Public Corporations as contemplated by Article91(1) (e) of the Constitution of the Democratic Republic of SriLanka 1978. In the circumstances the 1st respondent isdisqualified in terms of the said Article i.e. 91(1 )(e) of theConstitution to sit and vote in Parliament and further that the1st respondent’s office as a Member of Parliament has becomevacant in terms of Article 66(d) of the Constitution with effectfrom 9th November 1995. In view of the said disqualification ofthe 1st respondent, the petitioner moved this Court for- adeclaration that the 1st respondent has no right to hold officeas a member of Parliament and that his appointment is void.Further the petitioner has moved for a writ of Mandamus onthe 3rd respondent, erroneously referred to as the 2ndrespondent in the prayer, directing him (3rd respondent) toprevent the 1st respondent from functioning, sitting and votingas a Member of Parliament.
It is stated by the petitioner that the 1st respondent whileholding the office of a Member of Parliament is carrying on apartnership business under the name and style of M/sSenaratne Dental Supplies engaged in the business ofimporting and distributing dental equipment and material. Itwould appear from the document marked P37 dated 21. 06.1991 and P38 dated 09. 03. 1992 that the partnership hadcommenced its business on 31. 07. 1985. Further bydocuments marked P2-P10, P13-P17, P25 and P26 annexed tothis application, it would show that the said partnershipbusiness had not been dissolved but had continued to dobusiness up to 25. 08. 1998. In addition, the petitioner hasstated that the 1st respondent has also incorporated acompany called Senaratne Dental Supplies (Private) Limited,under the provisions of the Companies Act and has registeredthe company on 13. 12. 1995, (vide P33) which is engaged inthe import and distribution of dental equipment and material.
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Dilan Perera u. RajUha Senaratne (Yapa, J.)
83
In support the petitioner has produced the followingdocuments i.e. the Memorandum of Association and theArticles of Association of the said company Senaratne DentalSupplies (Private) Limited dated 11. 12. 1995 marked P30 andP31 respectively, where the three subscribers are N.H.R.H.Senaratne the 1st respondent, Sujatha Senaratne and N.H .M .P.Senaratne, the certificate for registration of office dated 11. 12.1995 marked P32, the Company Registration Certificate dated28. 07. 1998 marked P33, form 48 under the Company’s Actdated 11. 12. 1995, 10. 06. 1996 and 24. 01. 1998 markedP34, P35 and P36 respectively which give the particulars of theDirectors and the Secretaries of the Company.
The petitioner alleges that the 1st respondent whileholding the office of the Member of Parliament, has enteredinto various contracts with the Government Institutions tosupply dental equipment and material. It is the position of thepetitioner that 1st respondent’s partnership business M/sSenaratne Denial Supplies and his company SenaratneDental Supplies (Pvt) Ltd. have entered into these contracts. Inproof the petitioner has marked and produced severaldocuments to show that the 1st respondent’s partnershipand his company have entered into eight contracts withGovernment Institutions and briefly they are as follows:
i The Ist respondent’s partnership has entered into acontract dated 16. 11. 1995 on behalf of M/s Suz-Dent(India) Pvt. Ltd. with the Ministry of Health, Highways andSocial Services to supply 25 Nos. dental units withHydraulic Chair and Micro with certain other accessories.The contract document has been marked P5 and certainsupporting documents leading to the signing of the saidcontract have been produced. These documents are theletter dated 09. 11. 1995 marked P2, written by the 1strespondent as the Managing Director of his partnership tothe Ministry of Health relating to the award of the saidtender, the proforma invoice bearing No. SDS/321/95
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dated 09. 11.1995 marked P3, and the letter dated 01. 11.1995 marked P4, written by the Ministry of Health tothe lBt respondent’s partnership i.e. Senaratne DentalSupplies, intimating the approval of the tender.
1st respondent’s partnership i.e. Senaratne DentalSupplies, as the registered supplier of "Osu Sala” hassupplied dental products to the Sri Lanka Air Force. Insupport the petitioner has produced the followingdocuments which are true copies of the originals i.e. aletter dated 06. 12. 1995 marked P6, written by the 1strespondent as Managing Partner to the Manager “OsuSala” giving the quotations for the supply of dentalproducts. Order form dated 28. 12. 1995 marked P7, madeby Sri Lanka Air Force to “Osu Sala” for the purposeof purchasing dental products from "Osu Sala”.
1st respondent’s partnership Senaratne Dental Supplies inturn has sold and delivered the said items referred to in P7,to “Osu Sala” (to be supplied to Air Force) on invoicesbearing Nos. 5803, 5804, 5805 dated 02.01.1996 markedP8, P9 and P10 respectively. Two credit sale invoices dated04. 01. 1996 in respect of the said items issued by "OsuSala” to the Sri Lanka Air Force have been marked as P1 1and P12 respectively.
1st respondent’s partnership Senaratne Dental Supplieshas entered into several contracts with the Sri Lanka Navyfor the supply of dental material and it continues as asupplier to the Sri Lanka Navy. In support the petitionerhas produced the following documents. A true copy of theinvoice No. 6436 dated 13. 09. 1996 issued by the lslrespondent’s partnership for the supply of certain items tothe Sri Lanka Navy marked PI3,
A true copy of invoice No. 6449 dated 19. 11. 1996 issuedby the 1st respondent’s partnership for the supply ofcertain items to the Sri Lanka Navy marked PI4,
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A true copy of invoice No. 6472 dated 30. 05. 1997 issuedby the 1st respondent’s partnership for the supply ofcertain items to the Sri Lanka Navy marked P15,
A true copy of invoice No. 6473 dated 30. 05. 1997 issuedby the l81 respondent’s partnership for the supply ofcertain items to the Sri Lanka Navy marked PI6,
With regard to a tender for the supply of drugs, the 1strespondent’s partnership i.e. Senaratne Dental Supplies,by letter dated 05.01.1998 marked P17, has written to theChairman, Tender Board Sri Lanka Navy, quoting certainprices and attaching to it the literature documents markedPI8 and PI9. Thereafter Sri Lanka Navy by letter dated19. 05. 1998 marked P25, has requested M/s SenaratneDental Supplies for the delivery of items quoted in PI7.Accordingly by invoices (delivery orders) bearing Nos.2702, 2703, 2705, 2706, 2707 dated 24.03. 1998 markedP20, P21, P22, P23 and P24 1st respondent's Company i.e.Senaratne Dental Supplies (Pvt) Ltd. has supplied the saiditems to the Sri Lanka Navy.
The Sri Lanka Navy by letter dated 25. 08. 1998 markedP26, with the annexure marked P27, has written toM/s Senaratne Dental Supplies, i.e. the 1st respondent'spartnership business, that the quotation submitted bySenaratne Dental Supplies has been accepted by the SriLanka Navy Department tender board and therefore hasrequested for the supply of the items referred to in P26.Thereafter by invoice No. 2407 dated 18. 09. 1998 markedP28, 1st respondent’s Company i.e. Senaratne DentalSupplies (Pvt) Ltd. has supplied the said items.
It would appear therefore that the lsl respondent’spartnership business and his company have entered into eightcontracts with the Government Institutions such as theMinistry of Health, High ways and Social Services, Osu Sala,Sri Lanka Air Force and the Sri Lanka Navy. Further lsl
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respondent’s partnership and his company have entered intothese contracts while the 1st respondent continues to remainas a Member of Parliament. It is to be observed that thecontracts referred to in P2 to P10, PI 3 to PI 7, P25 and P26have been entered into with M/s Senaratne Dental Supplies,the partnership business of the 1st respondent and they arecontracts entered into directly with the State Institutions.Further contracts referred to in documents marked P2 to P5and P6 have been entered into on a date prior to theincorporation and registration of the 1st respondent's companySenaratne Dental Supplies (Pvt.) Ltd. Another observation tobe made in respect of the document marked P2 is that, it hasbeen signed by the 1 st respondent as Managing Director, andin the case of documents marked P3 and P6. these twodocuments have been signed by. the lsl respondent asManaging Partner. In the documents marked P2 and P3 the 1*'respondent has used the abbreviated designation M.P. whichstands for Member of Parliament. It is also seen from thestatement made to the police by the 1st respondent on 27. 03.1996 marked P29, he has admitted the fact that he is asupplier of dental equipment and material to GovernmentInstitutions and has so registered himself as a supplier to suchGovernment Institutions.
In the objections filed by the 1st respondent, he has simplydenied the several averments in the petition where thecontracts entered into by the 1st respondent on behalf of hispartnership business M/s Senaratne Dental Supplies, and onbehalf of his Company Senaratne Dental Supplies (Private)Ltd. are mentioned. It is clear from the documents marked bythe petitioner in connection with his partnership business andhis company, that they are really family concerns of the lslrespondent which are being managed by him. Therefore froma close scrutiny of the related documents marked by thepetitioner, it is pretty obvious that the 1st respondent hasentered into various contracts with the GovernmentInstitutions while being a Member of Parliament. Somecontracts were entered into in the name of M/s Senaratne
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Dilan Perera v. Kajitha Senaratne (Yapa, J.)
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Dental Supplies (1st respondent’s partnership) and somecontracts in the name of Senaratne Dental Supplies (Pvt) Ltd.(lsl respondent's Private Company). Perhaps it may be due tothis reason that at the hearing of this application, the learnedSenior Counsel for the lsl respondent did not seriously contestthe submission of learned Counsel for the petitioner, that the1st respondent held various contracts with the GovernmentDepartments and Institutions and has been doing businesswith them.
The main point that was veiy strenuously argued byMr. Choksy, learned Senior Counsel for the 1st respondent wasthe absence of any law prohibiting .a Member of Parliamentfrom entering into contracts with any GovernmentInstitutions, and therefore there was no possibility of takingany action against the 1st respondent in respect of the allegedcontracts. Before considering this argument of Mr. Choksy, itis necessary to keep in mind the following salient features.That Article 91(1) (e) of the 1978 Constitution prohibits aperson from being elected as a Member of Parliament or sittingand voting in Parliamen t, if he has entered into any prohibitedtypes of contracts. This is veiy clearly provided for in the 1978Constitution. The position was the same under the 1972Constitution in view of Section 70(1)(d). In the 1978Constitution Article 91 (1 )(e) provides as follows:-
91(1) No person shall be qualified to be elected as aMember of Parliament or sit and vote in Parliament:
(e)if he has any such interest in any such con tract made
by or on behalf of the State or a public corporation asParliament shall by law prescribe:
Therefore it is to be observed that unlike in the case of theDonoughmore Constitution and the Soulbury Constitutionwhere there were self contained disqualifications in regard tocon tracts with the State or State Institutions, 1972 and 1978Constitutions required the legislature to specify by lawenacted by the National State Assembly or by Parliament, to
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lay down the prohibited types of contracts and the prohibitedinterests in such contracts. But in both these Constitutionsi.e. 1972 and 1978, it is very clearly laid down that no personshall be qualified to be elected as a Member of Parliament(National State Assembly in the case of 1972 Constitution) orto sit and vote in Parliament if he has any such interest in anysuch contract made by or on behalf of the State or a PublicCorporation as Parliament shall by law prescribe. However itis common knowledge that neither the National StateAssembly nor the Parliament passed the necessary law to giveeffect to the disqualification referred to above. Further it is alsoclear that the necessary law had to be passed by the NationalState Assembly in terms of the provisions of Section 73(f) in thecase of the 1972 Constitution and by Parliament in terms ofthe provisions of Article 101 (1 )(1) in this case of the 1978Constitution.
The argument of learned Senior Counsel for the l9'respondent is that, the Soulbury Constitution was repealed bySection 12(1) read with schedule A of the 1972 Constitution.The 1972 Constitution was repealed by Article 171 of the 1978Constitution. Further Part ii and Part iii of the Ceylon(Parliamentary Elections) Order in Council, 1946, wererepealed by the Registration of Electors Act, No. 44 of 1980(vide Section 27(1)) and Part i and Parts iv to vi (both inclusive)of the Ceylon (Parliamentary Elections) Order in Council,1946, were repealed by Parliamentary Elections Act, No. I of1981 (vide Section 130). Therefore learned Senior Counselcontended that in view of the repeal of the SoulburyConstitution, the 1972 Constitution and the Ceylon(Parliamentary Elections) Order in Council, 1946, there is nolaw applicable, which would prohibit a member from enteringinto contracts at the time of election or at the time of sitting andvoting in Parliament. In other words it was Mr. Choksy'ssubmission that today a Member of Parliament cannot bedisqualified either at the time of election by means of anelection petition or thereafter from sitting and voting by meansof a writ of quo warranto on the ground of having any interest
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in any such contract with the State or State Institutions. Firstsituation Counsel submitted is due to the repeal of the Ceylon(Parliamentary Elections) Order in Council, 1946, and thesecond situation is due to the failure of Parliament to pass thenecessary law under Article 91(l)(e). Learned Counsel evenwent to the extent of submitting that the predicament is suchthat the relevance and applicability of earlier decisions on thesubject and more particularly the case of Dahanayake vs.
. De Silva1'1, will require careful consideration and scrutiny inthe present context.
However, before considering this argument of learnedSenior Counsel, it is appropriate to examine the manner inwhich the Supreme Court approached a similar argumentraised by Counsel under the 1972 Constitution in the case ofDahanayake us. De Silva referred to above. In that case theSupreme Court had to consider whether a contract between aMember of Parliament (at the time of Election) and a StateCorporation entailed any disqualification in terms of section70(1 )(d) of the 1972 Constitution. As observed above, evenunder the 1972 Constitution, the National State Assembly hadfailed to specify by law the disqualifications contemplated bySection 70( 1 )(d). In the case of Dahanayake vs De Silva(supra)the main issue was whether there was any law applicable eventhough the National State Assembly had admittedly failed tospecify by law “such interest" in any “such contract" for thepurpose of disqualifications contemplated by Section 70( l)(d).In the present case also we are faced with a similar issue.Therefore in my view the following passage in the Judgment ofSamarakoon C. J. in Dahanayake vs De Silva(supra) is not onlyilluminative but would provide the necessary backgroundfrom which one should approach the arguments advanced byCounsel. Samarakoon, C.J. in the course of his judgment at 49stated as follows:
“It is an admitted fact that the National State Assembly didnot, during the whole of the period that it was in existence,specify by law “such interest" in any “such contract” for the
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purpose of the disqualification contemplated by Section 70( 1 )(d).The National State Assembly was empowered to do this by theprovisions of Section 73(f) but chose not to do so. Therefore,Counsel contend, the question of disqualification by reason ofcontract does not arise for decision. It is as simple as that. Aprovision such as the one in Section 70( 1) (d) is one that isenacted for “securing the Freedom and Independence ofParliament” (Vide 22 Geo. iii c. 45 of 1782) and to secure" theindependence of members of the Legislature and their freedomfrom any conflict between their duty to the public and theirprivate interests" (per de KretserJ. in Dahanciyake us. Pieris12'at 394.) That the National State Assembly deliberately left wideopen the doors of corruption for its members is not aproposition we can lightly entertain. We have had a healthytradition in this regard and it is unthinkable that anyfundamental departure from this tradition of maintaininghonesty and purity in public life has been made in the 1972Constitution. By 1972 numerous State Corporations hadcome into existence regulating and servicing wide areas ofpublic life. Since their activities touched the lives of the peopleat many points, sometimes even bringing about contractualrelations in respect of their ordinary day to day activities, therewas undoubtedly a need for a clear-cut decision as to whatcontracts and what interests should or should not constitutea disqualification for candidates to Parliament. If there wasany intention to do away with this particular disqualification,we would not have expected to find a provision like Section70(1 )(d) incorporated in the Constitution. This Section, farfrom doing away with such a disqualification, appears to haveadded to its ambit and now contains the twin concepts of Stateand Corporation, where previously only one term “Crown"existed. What appears to have been left to the Legislature,considering the wider context of State regulation now inexistence was the duty to demarcate the limit beyondwhich such contractual relations should constitute adisqualification for membership in the House. Over sevenyears have passed, and two successive Parliaments have still
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not addressed their minds to this matter. It is against thisbackground that we have to consider the arguments as towhether the draftsman of the Constitution left a vacuum inthis respect or whether the transitional provisions containedin Section 75 are adequate to take charge of this situation untilsuch time as Parliament decides to lay down afresh thenecessary criteria."
Mr. Choksy submitted that Article 91(1) (e) of the 1978Constitution covers both points of time namely the time ofelection and sitting and voting. However he contended thatthis Article does not incorporate or keep alive the provisions ofthe Ceylon (Parliamentary Elections) Order iri Council, 1946,or Section 13(3) (c) of the Soulbury Constitution until suchtime Parliament passed the necessary law. Learned Counselalso submitted that Ceylon (Parliamentary Elections) order inCouncil, 1946, is retained only in Article 101 which deals withthe point of time of an election and therefore there is nostatutory provision keeping alive the Ceylon (ParliamentaryElections) Order in Council, 1946, after the point of time of theelection and making it applicable to the subsequent period ofsitting and voting in Parliament. Mr. Choksy furthersubmitted that if the framers of the Constitution intended ordesired they could have incorporated in Article 91 (1 )(e) itselfthe Ceylon (Parliamentary Elections) Order in Council, 1946,as temporary measure until Parliament passed the necessarylaw, which they have failed to do. The only provisionof the 1978 Constitution which keeps alive the Ceylon(Parliamentary Elections) Order in Council, 1946, is Article101 and the said Article deals with two specific matters namelyRegistration of electors and Election of Members ofParliament. As referred to in sub Article (a) to (d) of Article101 (1), it deals with the preparation of the Registers of Electorsand sub Article (e) to (i) of the said Article deals with theconduct of elections, election petitions and such other mattersas are necessary or incidental to the election of Members ofParliament. Therefore learned Counsel submitted that Article101 in no way applies to the post election period of sitting and
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voting in Parliament. Further he contended that the marginalnote and the wording of the Article and its contents allmake this clear. According to Mr. Choksy “such matters" ascontained in Article 101 (1) is clearly a reference to the matterscovered by Article 101(1) only and the Parliament passed thenecessaiy laws to provide for such matters when it enactedthe Registration of Electors Act, No. 44 of 1980 and theParliamentary Elections Act, No. 1 of 1981.
With regard to this submission of Mr. Choksy, it wouldappear that to place such a restriction on the operation ofArticle 101(1) would be to do violence to the intention of theframers of the Constitution., As stated above the necessary lawto cover both points of time, namely, at the time of election orat the time of sitting and voting have to be made in terms ofArticle 101(1) and more specifically in terms of Article 101 (1 Hi).This was the view expressed by the Supreme Court in the caseof Dahanayake us. De Silva(supra) in relation to the 1972Constitution, where it was stated very clearly that Section 73(f)of the 1972 Constitution was the empowering provision tocreate the law for the purpose of disqualification contemplatedby Section 70(1 )(d). It should be noted that sitting and votingis a necessary or incidental consequence to the election ofmembers to the National State Assembly or to the Parliament.In addition in that case, the argument advanced by Counsel toplace a restriction with regard to the operation of Section 73 toprocedural matters as opposed to the creation of necessarysubstantive law was rejected. The Court in that case acceptedthe position that two of the items in respect of which laws canbe made by the National State Assembly was section 73(e) thegrounds for avoiding elections, and section 73(f) such othermatters as are necessary or incidental to the election ofmembers to the National State Assembly: Provided, however,that a law made under this section shall not add to thedisqualifications enumerated in Section 70. Therefore on thestrength of this reasoning by the Supreme Court, we are of theview that it would not be correct to place the restriction assuggested by Mr. Choksy on Article 101(1) namely that it deals
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only with the point of time of the election and not applicable tothe subsequent period of sitting and voting in parliament. Asheld by the Supreme Court in the case of Dahanayake vs. DeSilva, (supra) that the National State Assembly had the powerto pass substantive laws on certain matters in terms of Section73(e) and (f), in the same way, we hold that in terms of Article101 (l)(i) Parliament still has the power to pass laws necessaryin respect of disputed elections and such other matters as arenecessary or incidental to the election of Members ofParliament. But as stated in the proviso, no such law shall addto the disqualifications specified in Articles 89 and 91. It isinherent in the proviso that the Parliament has the power topass the necessary laws. In the result it would appear that theframers of the Constitution had in mind the need to take actionto implement the provisions of Article 91(1 )(ej in terms ofArticle 101 (1 )(i). The term necessary or incidental to theelection of Members of Parliament is wide enough to empowerParliament to pass the necessary laws as required by Article91 (1) (e) to cover not only the point of time of an election but thesubsequent period of sitting and voting in Parliament. Furtherit would be seen that Article 101(1) is the empoweringprovision for the Parliament to pass the necessary laws, toimplement the provisions of Article 91(1)(e). LearnedAdditional Solicitor General Mr. Mansoof in the course of hissubmissions contended that according to Article 101 (1 )(i)Parliament could make provision with regard to “the mannerof determination of disputed elections and such other mattersas are necessary or incidental to the election of Members ofParliament” and the phraseology used in this sub Articlewould catch up disqualifications that could arise afterelections and during the tenure of office of a Member ofParliament. Further he submitted that when a Member ofParliament is elected his sitting and voting as a Member ofParliament is necessary or incidental to such an election.Therefore in our view, it would be erroneous to think that theframers of the Constitution having stated in no uncertainterms in Article 91 (l)(e) that no person shall be qualified to beelected as a Member of Parliament or to sit and vote in
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Parliament, if he has any such interest in any such contractmade by or on behalf of the state or a public corporation, lefta big vacuum to ponder on several years later.
Mr. Choksy made a further submission the effect of whichwould be to restrict the operation of Article 101 (1) by referringto the marginal note to the said Article which states the“Parliament may make provision in respect of elections." Inother words Counsel submitted that in view of the marginalnote Parliament can only make provision in respect ofelections and not in respect other matters such as sitting andvoting in Parliament. On this matter itshould be borne in mindthat marginal notes are not a proper guide in the Interpretationof Statutes. Maxwell on ‘The Interpretation of Statutes",Twelfth Edition by P. St. J. Langan at page 9 on marginal notesstates thus: The notes often found printed at the side ofSections in an Act, which purport to summarize the effectof the Sections, have sometimes been used as an aid toconstruction. But the weight of the authorities is to the effectthat they are not parts of the statute and so should not beconsidered, for they are "inserted not by Parliament nor underthe authority of Parliament, but by irresponsible persons.”This view was confirmed by the House of Lords in the case ofChandler v. D.P.P.p> where Lord Reid at 789, 790 observed asfollows:
“In my view side notes cannot be used as an aid toconstruction. They are mere catchwords and 1 have neverheard of it being supposed in recent times that an amendmentto alter a side note could be proposed in either House ofParliament. Side notes in the original Bill are inserted by thedraftsman. During the passage of the Bill through its variousstages amendments to it or other reasons may make itdesirable to alter a side note. In that event I have reason tobelieve that alterations is made by the appropriate officer of theHouse-no doubt in consultation with the draftsman. So sidenotes cannot be said to be enacted in the same sense as thelong title or any part of the body of the Act.”
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In view of the above reasoning it follows that the Ceylon(Parliamentary Elections) Order in Council, 1946, would applynot only to the point of time of an election but to thesubsequent period of sitting and voting in Parliament. This isbecause the Parliament is empowered to prescribe by law“such interest” in any “such contract” for the purpose of thedisqualification contemplated by Article 91(l)(e), in terms ofArticle 101 (1 )(i). Even though the Parliament has passed thenecessary laws in respect of some of the matters requiredunder Article 101(1), such as 101(1) sub Article (a) to (h),Parliament has not provided for some of the matters asrequired by Article 101(l)(i), more specifically such othermatters as are necessary or incidental to the election ofMembers of Parliament, which would cover the point of time ofan election or sitting and voting in Parliament. Therefore whenCeylon (Parliamentary Elections) Order in Council, 1946, wasrepealed by Registration of Electors Act, No. 44 of 1980 andParliamentary Elections Act, No. 1 of 1981, it was repealed forthe limited purpose and to the extent of the operation of thesaid two Acts (Act, No. 44 of 1980 and Act, No. 1 of 1981) andno further. This is because the Parliament passed the said twoActs providing for some of the matters required under Article101(1) and therefore it became necessary to repeal, the Ceylon(Parliamentary Elections) Order in Council, 1946, to avoid aconflict with the said two Acts. However it must be borne inmind that Ceylon (Parliamentary Elections) Order in Council,1946, will continue to apply in respect of the matters notprovided for by Parliament, namely, the laws that arenecessary or incidental in order to provide for the mattersrequired under Article 101 (1)(i) that would cover the point oftime of an election or sitting and voting in Parliament.Therefore until the Parliament performs its obligation ofpassing the other necessary laws in terms of Article 101 (l)(i)to comply with the requirements of Article 91 (1 )(e), the Ceylon(Parliamentary Elections) Order in Council, 1946, willcontinue to operate. Further one should not forget the fact thatArticle 101(2) keeping alive the Ceylon (ParliamentaryElections) Order in Council, 1946, is a constitutional
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provision. Therefore ordinary legislation such as the Act.No. 44 of 1980 and Act, No. 1 of 1981 cannot repeal the Ceylon(Parliamentary Elections) Order in Council, 1946, wholesale,if there are such other matters like what is required to be doneto comply with Article 91 (1) (e) has not been done by Parliamentacting in terms of Article 101 (1)(i). In these circumstancesCeylon (Parliamentary Elections) Order in Council, 1946, shallcontinue to operate in respect of such matters not provided forby Parliament, and only when all such matters have beenprovided for by Parliament that the operation of the Ceylon(Parliamentary Elections) Order in Council, 1946, will cease tooperate.
Mr. Choksy sought to argue that the framers of the 1978Constitution should have retained Ceylon (ParliamentaryElections) Order in Council, 1946, under Article 91(1)(e) toavoid any problem arising in respect of the law applicable tothe Members of Parliament at the time of election or sitting andvoting in Parliament. But as referred to above what the framersof the 1978 Constitution have endeavoured, is to make Article101(1) the empowering provision for the Parliament to pass thenecessary laws and retained the Ceylon (ParliamentaryElections) Order in Council, 1946, under that Article (101 (2)|until such time as the Parliament make provision for "suchmatters”. The term “such matters” in Article 101(2) is wideenough to cover the law necessary to decide the question of thequalification of a person to be elected as a Member ofParliament or to sit and vote in Parliament. The restriction thatMr. Choksy sought to place on the term “such matters" inArticle 101(2) to mean in respect of elections cannot beaccepted in view of the reasoning in the decision of SamarcikooriC.J. in Dahanayake vs. De Silva(supraJ.
It is now clear that the Parliament has not prescribed thelaw necessary under Article 91(l)(e) that will provide for thedisqualification of a person to be elected as a Member ofParliament or to sit and vote in Parliament. ThereforeCeylon (Parliamentary Elections) Order in Council, 1946, will
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continue to operate subject to the provisions of Act, No. 44 of1980 and Act, No. 1 of 1981. Once the Ceylon (ParliamentaryElections) Order in Council, 1946, continue to operate, then,one has to apply Section 13(3)(c) of the Ceylon (Constitution)Order in Council, 1946, (hereinafter referred to as theSoulbury Constitution) for the purpose of considering anydisqualification by reason of contract. The reason being thatSection 77 of the Ceylon (Parliamentary Elections) Order inCouncil, 1946, refers to the grounds for the avoidance ofElections and more specifically Section 77(e) gives thedisqualification for election as one of the grounds. In thesecircumstances Section 13(3)(c) of the Soulbury Constitutionshould be considered for any disqualification by reason of anycontract. This was the view taken by the Supreme Court in thecase of Dahanayake vs. De Silvafsupra). In that caseSamarakoon C.J. considered the scope of Sections 73, 75 and12(1) of the 1972 Constitution and held that Section 75 keptalive the election laws that were in operation on 21s* May 1972and Section 13(3)(c) of the Soulbury Constitution was onesuch law. The analogous provisions to the said Sections of the1972 Constitution are found in Article 101 (1) & (2) and Article168(1) in the 1978 Constitution. Further the definition of “law"in Article 170 of the 1978 Constitution includes an Order inCouncil.
In the instant case learned Additional Solicitor GeneralMr. Marsoof, sought to argue that Section 13(3)(c) of theSoulbuiy Constitution is also kept alive in terms of Article168(1) of the 1978 Constitution. Mr. Choksy countered thisargument on the basis that the reasoning of learned AdditionalSolicitor General was wrong because Section 13(3)(c) of theSoulbury Constitution was not in force immediately before thecommencement of the 1978 Constitution, since SoulburyConstitution had been repealed by the 1972 Constitution.However, the application of Section 13(3)(c) to the presentsituation as the law applicable should be considered forthe following reason. At the hearing of this application a
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submission was made by Mr. Rajapakse, learned SeniorCounsel for the petitioner that the decision in the case ofDahanayake vs. De Silva,(supra) is part of the law now in force.Even though learned Counsel for the petitioner did notsupport this argument with any authority, his contention wasthat irrespective of whether resort is made to the Ceylon(Parliamentaiy Elections) Order in Council, 1946, or not.Section 13(3)(c) of the Soulbury Constitution has been keptalive and in force now, in view of the decision of the SupremeCourt in the case of Dahanayake vs. De Silva(supra). Thereforeit was submitted by him that Section 13(3)(c) of the SoulburyConstitution should be considered for the purpose of givingeffect to Article 9 l(l)(e) of the 1978 Constitution. However thisargument has to be considered in relation to Article 168(1) ofthe 1978 Constitution. In other words the question in issue iswhether, Article 168(1) would permit the Supreme Courtdecision in the case of Dahanayake vs. De Silva(siipra) to betreated as unwritten laws in force. On this matter the SupremeCourt decision in the case of Walker Sons & Co. (U.K.) Ltd. vs.Gunatilake141 is relevant and important. According to this fivebench decision of the Supreme Court, the ratio decidendi ofjudicial decisions belongs to the category of unwritten lawswithin the meaning of Article 168(1). Therefore it is to beobserved that the decision in the case of Dahanayake vs.De Silvcufsupra) where it has been held that under the 1972Constitution, Section 13(3)(c) of the Soulbury Constitutionwas in operation to be considered for any disqualification byreason of contract, should now be considered as part of theunwritten laws in force for the purpose of Article 168( 1) of the1978 Constitution. Once the highest Court of the land hasinterpreted the law it becomes part and parcel of the law inforce. Decision in Dahanayake vs. De Silva, being a decision ofthe Supreme Court, this Court is bound by this decision.
The position regarding contracts under the SoulburyConstitution is laid down in Section 13(3)(c) of the saidConstitution. Section 13(3)(c) provides as follows:
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"13(3) A person shall be disqualified for being electedor appointed as a Senator or a member of this House ofRepresentative or for sitting or voting in the Senate or in theHouse of Representatives-
(c) if he, directly or indirectly, by himself or by any personon his behalf or for his use or benefit, holds, or enj oys any rightor benefit under any contract made by or on behalf of theCrown in respect of the Government of the Island for thefurnishing or providing of money to be remitted abroad or ofgoods or services to be used or employed in the service of theCrown in the Island;"
From an examination of the provisions of Section 13(3)(c)of the Soulbury Constitution it is seen that a member could beheld disqualified at the point of election (by an electionpetition) and thereafter (by quo warranto) from sitting andvoting, if he has entered into a prohibited contract after hiselection. Therefore Section 13(3)(c) would apply to bothsituations, namely, at the point of election and thereafter at thetime of sitting and voting in Parliament. Under the DonoughmoreConstitution of 1931 the question of disqualification formembership on account of the existence of any contract withthe Crown was dealt with in Article 9(d) of the Ceylon (StateCouncil Elections) Order in Council 1931. In the case ofDahanayake vs. Peiris(supra) where the petitioner challengedthe election of the respondent under Article 9(d) of the Ceylon(State Council Elections) Order in Council, 1931, onthe ground that the respondent held contracts with theGovernment of Ceylon and the Court held that therespondent’s election was void on that ground. Also vide .Somasundaram vs. Kotalawala!5’, Cooray vs. De Zoysal6>.Under Section 13(3)(c) of the Soulbury Constitution, vide thecase of KuLasingham vs. Thambiayan(7> and Thambiayah vs.Kulasingham181. In the present case there is no doubt that thecontracts entered into by the 1st respondent with GovernmentDepartments and Institutions are contracts entered into bythe said Institutions as agents of the State. Therefore we hold
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that the l81 respondent while being a member of Parliamenthas been a party to several contracts (eight contracts) enteredinto with him (i. e. 1st respondent’s partnership and company)by several Government Departments and Institutions onbehalf of the State. They are contracts prohibited in terms ofSection 13(3)(c) of the Soulbury Constitution. The term "crown"has now been replaced by the Republic of Sri Lanka andtherefore the 1st respondent by holding the contracts referredto above with the Republic of Sri Lanka has disqualifiedhimself from sitting and voting in Parliament. In other wordsthe 1st respondent is disqualified to function or sit and vote asa member of Parliament of Sri Lanka.
In this application question has been raised on behalf ofthe 1st respondent with regard to the Locus Standi of thepetitioner to file this application. It is to be observed that quowarranto is a remedy available to call upon a person to showby what authority he claims to hold such office. Therefore thebasic purpose of the writ is to determine whether the holder ofa public office is legally entitled to that office. If a person isdisqualified by law to hold statutory office the writ is availableto oust him. Vide Gunasekeravs. Wijesinghe,9>. This writ wouldnot be issued unless the statute itself clearly disentitlesa person from holding such office. Vide Martin Perera vs.Madadombe(,0K In mandamus the petitioner must show that heis a person aggrieved but this requirement is not necessary inquo warranto, since this writ seeks to prevent an occupier ora usurper of an office of public nature from continuing in thatposition. Therefore in these proceedings it would appeair thatany person can challenge the validity of an appointment to apublic office irrespective of whether any fundamental or otherlegal right of that person is infringed or not. But the Court mustbe satisfied that the person so applying is bona fide in hisapplication and that there is a necessity in public interest todeclare judicially that there is an usurpation of public office.On the contrary if the applicant concerned is not bona fide inhis application, he cannot claim this remedy. Even though the
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applicant may not be an aspirant to the office, nor he has anyinterest in the appointment, he can still apply as an ordinarycitizen. A member of a municipal body or a mere rate payer canchallenge the right of a member to sit as a member in amunicipality. Any person though not personally interested inthe results of an election can apply for the writ of quo warranto.Learned Counsel for the petitioner referred us to the caseof Nesamony vs. Varghese,n> cited by H. M. Seervai,"Constitutional Law of India” Third Edition Volume ii Page1218, where the Indian Supreme Court has held that: “If astranger, acting bonafide, can, apply for a writ of quo warranto,afortiori person having a special interest in the office would beentitled to do so. Accordingly, a member of a legislativeassembly had locus standi to apply for quo warranto if he bonafide believed that the speaker held his office without legalauthority."
Therefore we hold that the petitioner who is a Member ofParliament clearly has the locus standi to file this application.
It is also alleged on behalf of the 1st respondent that therehas been delay in making this application by the petitioner. Inrespect of the question of delay, it is to be observed that, therecan be no delay in this case for the reason that the mischiefcomplained of is a continuing one. In other words the lslrespondent’s continuance in office affords fresh cause ofaction each day till he is removed. Therefore it would appearthat there is no question of delay as far as this writ isconcerned. On this matter learned Counsel for the petitionerreferred us to the case of Sanu Sampat vs. Jalgaon BoroughMunicipality*121 cited in V. G. Ramachandran’s Law of WritsFifth Edition page 798, where it was observed that “If theappointment of an officer is illegal every day that he acts in thatoffice a fresh cause of action arises; there can, therefore, be noquestion of delay in presenting a petition for a writ of quowarranto in which his very right to act in such a responsiblepost has been questioned."
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From the material referred to above, it is manifestly clearthat Section 13(3)(c) of the Soulbury Constitution should beconsidered as the law applicable as at present, whenconsidering the disqualification referred to in Article 91 (l)(e).Further it is quite clear that the 1 s‘ respondent has entered intoseveral prohibited contracts with the GovernmentDepartments and Institutions, and therefore he hasdisqualified himself in terms of Article 91(1) (e) from sitting andvoting in Parliament. In other words the 1sl respondent cannotfunction as a member of parliament and his office as a memberof Parliament would become vacant in terms of Article 66(d) ofthe 1978 Constitution.
For the aforesaid reasons we make order granting the writof quo warranto as prayed for by the petitioner, declaring theappointment of the 1st respondent as a member of Parliamentvoid and that he has no right to continue to hold office as amember of Parliament. Therefore by granting a writ ofmandamus as against the 3rd respondent (SecretaryGeneral of Parliament) we direct him to take necessary andconsequential steps in terms of the law. Further we deeplyappreciate the assistance given to us by Counsel.
DE SILVA, J. – I agree.
Writs of Quo Warranto and Mandamus issued